Contingency Fees in South Carolina Criminal Law Cases

I practice quite a bit of South Carolina criminal law on the defense side.  In other words, if someone is charged with a criminal offense in South Carolina, I am often retained (or hired) to represent and defend these individuals.  Over the years, I have noticed that there are many misconceptions about how attorneys charge for their services.  I hope that this article, along with others I plan to write on the issue of South Carolina attorney fees, provides some insight for those seeking legal services in South Carolina.

Many clients have seen attorneys on television advertising that they “do not get paid unless you get paid” or some similar language.  In my experience, the great majority of these attorneys are personal injury attorneys representing those injured in car accidents, or otherwise due to allegations of negligence against some third party.  These attorneys are seeking to represent potential “Plaintiffs” – those who would seek compensation for losses caused due to someone else’s negligence.  In the South Carolina personal injury world, it is quite common, if not the “norm” in my experience, for these attorneys to 1) provide some form of a free consultation to potential or prospective clients, and 2) to take or accept injury cases when representing Plaintiffs on a contingency fee basis.

What is a contingency fee?  In its simplest terms, a contingency fee means that the lawyer or law firm representing you in a personal injury case will charge a percentage of the recovery (or money paid to you as the result of a settlement or legal verdict) as his or her fee.  This percentage is how that lawyer gets paid and pays his or her overhead (such as staff, office rent, telephone, etc.).  There is often a shared risk element here – if the attorney is not successful in obtaining a favorable outcome for the client, the attorney may not be able to collect his or her fee and the client also does not get compensated for the alleged injury or loss.  This article is not meant to get into the intricacies of contingency fee contracts, but it is this point that leads into the purpose of this article.

In South Carolina, a criminal defense attorney representing an individual charged with a criminal law offense cannot charge a contingency fee for representation.  This is not a business decision on the part of the lawyer, but is instead an absolute prohibition by Court Rule.

The exact South Carolina Rule is as follows:

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof, provided that a lawyer may charge a contingency fee in collection of past due alimony or child support; or

(2) a contingent fee for representing a defendant in a criminal case.

An example would be as follows: a South Carolina criminal defense attorney could not tell a client, in my opinion based on my interpretation of the Rules governing attorney-client relationships in South Carolina, “I will represent you in your Hilton Head Island DUI case, and if I get the charge dismissed, you pay me $10,000.00, but if not, then you pay me nothing”.  In a contingency fee case, the attorney is essentially hoping to get paid by taking a portion of a recovery received from some third-party in the future, and not necessarily from the client’s direct funds.  In the criminal defense world in South Carolina, money damages are not being sought from some third-party, but instead the State of South Carolina is seeking to potentially penalize and/or jail/imprison an individual.  This is a very different scenario.  What does this mean as a practical matter?

1) A South Carolina criminal defense attorney is much more likely to charge an initial consultation fee for a potential criminal client than an attorney meeting with a prospective or potential personal injury client.  Why?  The attorney cannot seek payment from a future potential monetary recovery, and the attorney has overhead to pay, such as staff, utilities, bar dues, etc.  I have actually had prospective clients call and demand a “free consult” in criminal law matters, claiming the person had a “right” to this.  This could not be further from the truth – a free initial consultation in this realm is a business decision on the attorney’s part, and there is certainly no constitutional right, for instance, to a free initial consultation with a South Carolina criminal defense attorney.  Point two below will further illustrate why attorneys outside of the personal injury Plaintiff’s realm often charge consultation fees.

2) Though there are many ways of charging South Carolina criminal clients for representation, the most common in my experience are charging by the hour or charging via a flat fee representation agreement.  For example, an attorney may charge X dollars per hour for representation, or the attorney may charge some flat fee or amount, such as Y dollars, for the entire representation.  If a criminal defense attorney charges by the hour in particular, the attorney is still paying overhead and not working on other paying matters while meeting with a prospective client.  Initial consultations in criminal law matters can often take up to two hours in my experience in order to fully and competently explain the situation and provide an overview of potential legal options – if the attorney is not charging a fee for this service, the attorney is likely not bringing in any revenue for this time.

While I plan to write further on attorney fee matters, this article is meant to provide some general background on this topic.  A South Carolina criminal defense attorney should be willing to discuss fees and costs of representation with you.  This conversation normally happens during the initial consultation.  Please just remember that the attorney is forbidden from taking your South Carolina criminal law case on a contingency fee basis.  As a practical matter, this means that either you or someone on your behalf will need to be able to provide some or all of the funds for representation in order to retain the attorney.

If you would like to speak with an attorney from our firm concerning your criminal law matter or other legal matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).  Our primary office is located on the South End of Hilton Head Island in Orleans Plaza, at 37 New Orleans Road, Suite V, Hilton Head Island, SC 29928.

Our practice areas are primarily limited to Criminal Law (including, but not limited to, South Carolina felony charges, South Carolina misdemeanor offenses, and state level ICE Holds), and Family Law (including, but not limited to custody, contested divorce, uncontested divorce, alimony, equitable distribution, child support, visitation, separation agreements, and Guardian ad Litem appointments).  The firm handles other matters (non-Family and/or Criminal Law) only on a case-by-case basis.

This article was written by Dustin Lee, a South Carolina licensed attorney.  The information contained in this article is not and is not to be construed as legal advice.  This article was written in June of 2015 – changes to South Carolina law may occur or may have occurred since publication.

 

South Carolina – The Putative Spouse/Putative Marriage Doctrine

The South Carolina Supreme Court recently had an opportunity to determine whether South Carolina recognizes the “putative spouse” or “putative marriage” doctrine.  The answer – a firm and unanimous “no.”

In Hill v. Bert Bell/Pete Rozelle NFL Player Retirement Plan (Opinion No. 27308 – Filed August 28, 2013), a former NFL player (“Husband”) married Hill (“Wife 1”) in Maryland.  Though the parties separated, they never divorced.  Nevertheless, Husband purported to marry Sullivan (“Wife 2”) in South Carolina.  The record in this case indicates that Wife 2 and Husband obtained a marriage license, and Wife 2 was unaware of Husband’s marriage to Wife 1.

When Husband died, Wife 2 began receiving his pension from the NFL, as Husband even listed Wife 2 as his spouse on the applicable forms.  About four years later, Wife 1 came back into the picture and started taking action to obtain the pension Wife 2 was receiving.

Wife 2’s claim/defense was that she should receive the same rights conferred upon a legal spouse under the putative spouse doctrine because she lived with Husband with the good faith belief they were married (note: Wife 1 was still alive this entire time).

The putative spouse doctrine is codified in section 209 of the Uniform Marriage and Divorce Act as follows:

“Any person who has cohabitated with another to whom he is not legally marriage in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights.  A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited or declared invalid.  If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.”

Prior to this case, South Carolina had not adopted the putative spouse doctrine.

The South Carolina Supreme Court declined to adopt the putative spouse doctrine, holding that it is contrary to South Carolina’s statutory law and marital jurisprudence.  The Court cited past precedent for support, including one holding setting forth, “Even if Wife was acting under a good faith belief, South Carolina will not recognize her bigamous second marriage because to do so would violate public policy.”  Additional authority cited by the South Carolina Supreme Court included language that, “A mere marriage ceremony between a man and a woman, where one of them has a living wife or husband, is not a marriage at all.  Such a marriage is void, and not merely voidable.”

Despite any perceived unfairness, South Carolina now has a clear ruling on this issue.  Regardless of this ruling, this author feels most South Carolina couples deciding to marry will not conduct much more thorough due diligence via such methods as “interrogating” a soon-to-be “spouse” and demanding to see prior divorce decrees, if any, and/or hiring a professional of some type for this purpose; however, it could prove financially disastrous to fail to take such steps in South Carolina if one feels that he or she will be dependent on a future entitlement or benefit that derives from being considered a lawful spouse in South Carolina.

If you would like to speak with an attorney from our firm concerning your divorce matter or other family law matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

Our practice areas are limited to Criminal Law (including, but not limited to, South Carolina felony charges, South Carolina misdemeanor offenses, and state level ICE Holds), and Family Law (including, but not limited to custody, contested divorce, uncontested divorce, alimony, equitable distribution, child support, visitation, separation agreements, and Guardian ad Litem appointments).  The firm handles other matters (non-Family and/or Criminal Law) only on a case-by-case basis.

This article was written by Dustin Lee, a South Carolina licensed attorney.  The information contained in this article is not and is not to be construed as legal advice.

Shoplifting Statute/Law in South Carolina – S.C. Code Ann. Section 16-13-110

South Carolina has a vast number of criminal offenses one can be charged with violating, some statutory (where one can actually “look them up in the code of laws”), and some at common law (essentially judge made law that has accumulated over time). As I browse through client “rap sheets” and current arrest jail logs, I frequently see “shoplifting” listed. The South Carolina statute (written law created by our state legislature) on point was last amended, as of this writing, in June of 2010, and is located at S.C. Code Ann. Section 16-13-110 (Cite as S.C. Code § 16-13-110). The law is written as follows (as of this writing – December, 2012):

“(A) A person is guilty of shoplifting if he:

(1) takes possession of, carries away, transfers from one person to another or from one area of a store or other retail mercantile establishment to another area, or causes to be carried away or transferred any merchandise displayed, held, stored, or offered for sale by any store or other retail mercantile establishment with the intention of depriving the merchant of the possession, use, or benefit of the merchandise without paying the full retail value;

(2) alters, transfers, or removes any label, price tag marking, indicia of value, or any other markings which aid in determining value affixed to any merchandise displayed, held, stored, or offered for sale in a store or other retail mercantile establishment and attempts to purchase the merchandise personally or in consort with another at less than the full retail value with the intention of depriving the merchant of the full retail value of the merchandise;

(3) transfers any merchandise displayed, held, stored, or offered for sale by any store or other retail mercantile establishment from the container in which it is displayed to any other container with intent to deprive the merchant of the full retail value.

(B) A person who violates the provisions of this section is guilty of a:

(1) misdemeanor triable in magistrates court or municipal court, notwithstanding the provisions of Sections 22-3-540, 22-3-545, 22-3-550, and 14-25-65, and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than thirty days if the value of the shoplifted merchandise is two thousand dollars or less;

(2) felony and, upon conviction, must be fined not more than one thousand dollars or imprisoned not more than five years, or both, if the value of the shoplifted merchandise is more than two thousand dollars but less than ten thousand dollars;

(3) felony and, upon conviction, must be imprisoned not more than ten years if the value of the shoplifted merchandise is ten thousand dollars or more.”

This post is not meant to give nor should it be relied upon as legal advice and it will not delve into all of the numerous intricacies, elements, defenses, and the like of the shoplifting statute; however, if you or a loved one have been arrested or contacted for questioning regarding possible shoplifting (for example: the Bluffton Police Department, Beaufort County Sheriff’s Department (BCSO), Jasper County Sheriff’s Department (JCSO), Beaufort City Police Department, etc. has made an arrest), it is often beneficial to contact a licensed South Carolina attorney that practices in the area of criminal law. While “shoplifting” a $60.00 polo style shirt from a local clothing store may be classified upon first blush as a misdemeanor above, S.C. Code Section 16-1-57 may come into play, which could change the potential sentence (depending on one’s past criminal history). S.C. Code Ann. Section 16-1-57 will be discussed at length in a future blog entry on this site, but, in short, if you or your loved one have any criminal record involving property type offenses where the penalty was in part determined by the value of the item(s) at issue, the above listed penalties (even for the “least serious misdemeanor level” shoplifting offense) may be superseded by Section 16-1-57 with a Class E Felony sentence of up to ten (10) years (a licensed South Carolina attorney should be consulted to assist in this determination). It is extremely important to be honest with your attorney regarding your complete past criminal record, no matter how small the prior conviction or guilty plea.

If you or loved one (the person under investigation or being charged with shoplifting) are anything other than a natural born or naturalized United States citizen, an immigration attorney should be consulted prior to accepting any plea deal and/or pleading guilty, or proceeding to trial, as a conviction for shoplifting could have adverse immigration consequences. State determinations of crimes of “moral turpitude” (example: if South Carolina considers an offense a crime of moral turpitude via case law) are not necessarily determinative of federal determinations of crimes of moral turpitude, and certain offenses by their very nature can have negative immigration consequences. At Lee Law Firm, LLC, one of the first things we determine during initial client interviews is whether or not our clients are anything other than a natural born or naturalized United States citizen.

If you would like to speak with an attorney from our firm concerning your South Carolina criminal charge, whether it is shoplifting (misdemeanor or felony level) or another state level criminal offense, please call us at (843) 474-0614 or (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

Our practice areas are limited to Criminal Law (including, but not limited to, South Carolina felony charges, South Carolina misdemeanor offenses, and state level ICE Holds), and Family Law (including, but not limited to custody, contested divorce, uncontested divorce, alimony, equitable distribution, child support, visitation, separation agreements, and Guardian ad Litem appointments).  The firm handles other matters (non-Family and/or Criminal Law) only on a case-by-case basis.

Pre-Marriage Engagement Ring Ownership Following Broken Engagement in South Carolina

This post is not meant or to be interpreted as legal advice.  Please consult with a licensed attorney as to your particular situation.  The findings of the South Carolina Court of Appeals in this case may have been overruled or distinguished, or be overruled or distinguished at any time.

On May 9, 2012, the South Carolina Court of Appeals had an opportunity to address ownership of an engagement ring in a romantic relationship that ended prior to marriage in the case of Campbell v. Robinson, Opinion Number 4969.  In other words, an engagement ring was presented, the other side said “yes,” but the engagement was broken off prior to marriage.

To begin, this was an action originally filed in a civil Circuit Court in South Carolina, and not in a South Carolina Family Court.  Marital property is a term of art in South Carolina law.  South Carolina Code Ann. Section 20-3-620 defines marital property; however, South Carolina Code Ann. Section 20-3-620(B) specifically sets forth that the Family Court, “does not have jurisdiction or authority to apportion nonmarital property.”  When dealing with an engagement ring prior to marriage between the gifting individuals (there was also no allegation of common law marriage in this matter found in the appellate opinion to cloudy the waters), one is almost certainly dealing with non-marital property.

What is an engagement ring?  According to the South Carolina Court of Appeals, an engagement ring by its very nature is a symbol of the donor’s (ring giver’s) continuing devotion to the donee (ring receiver).  Once an engagement is canceled, the ring no longer holds that significance. Thus, if a party presents evidence a ring was given in contemplation of marriage, the ring is an engagement ring.  As an engagement ring, the gift is impliedly conditioned upon the marriage taking place. Until the condition underlying the gift is fulfilled (i.e. – the parties get married), the attempted gift is unenforceable and must be returned to the donor upon the donor’s request.  This is not the “end of the analysis” though.

The person challenging the assertions that the ring is an engagement ring and therefore impliedly conditioned upon marriage has the burden of presenting evidence to overcome those assertions.  This burden may be satisfied by presenting evidence showing that the ring was not given in contemplation of marriage – it was not an engagement ring – or was not conditioned upon the marriage.  If the parties do not dispute that the ring was originally an engagement ring conditioned upon the marriage (example: both parties agree that the ring was at least originally an engagement ring), the burden may also be satisfied by presenting evidence establishing the ring subsequently became the challengor’s property (example: one may argue that after the breaking of the engagement, the ring receiver offered and tried to return the ring to the ring giver, but the ring giver wrote a letter setting forth that he or she desired the ring receiver to keep the ring for X or Y reason, such that the condition was removed and the gift became absolute).  As such, though the rulings set forth by the South Carolina Court of Appeals may appear clear to one or both sides upon first reading in a dispute, the particular facts of the situation matter.

The Court of Appeals was clear as to one matter though: the consideration of fault (as to who was at fault for the break in the engagement) has no place in determining ownership of an engagement ring.  Generally, gift law will dictate who has the legal right to the ring.  Tying in a bit of a South Carolina Family Court analysis, the South Carolina Court of Appeals further held that South Carolina’s use of fault in dividing property within the family court’s jurisdiction does not mandate the use of the fault approach for determining ownership of engagement rings when the marriage fails to occur.

On a final note, the South Carolina Court of Appeals held that though the heart balm actions for alienation of affection and criminal conversation have been abolished in South Carolina, promise to marry actions have not been expressly abolished.  The language of this portion of the opinion seems to invite the South Carolina Supreme Court and/or South Carolina legislature to take action, as the Court of Appeals indicates that its hands are essentially tied.

If you would like to speak with an attorney from our firm concerning your divorce matter or other family law matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

Violent Crimes Versus Non-Violent Crimes in South Carolina – South Carolina Code Annotated Sections 16-1-60 and 16-1-70

South Carolina has a vast number of criminal offenses one can be charged with violating, some statutory (where you can actually “look them up in the code of laws”), and some at common law (essentially judge made law that has accumulated over time).  The news is full of stories of violent sounding crimes, both in South Carolina and in the rest of the United States; however, according to South Carolina law, only certain crimes are considered violent.  The South Carolina statute (written law created by our state legislature) on point was last amended, as of this writing, in June of 2010, and is located at S.C. Code Ann. Section 16-1-60.  The law is written as follows (as of this writing – February, 2012):

“For purposes of definition under South Carolina law, a violent crime includes the offenses of: murder (Section 16-3-10); attempted murder (Section 16-3-29); assault and battery by mob, first degree, resulting in death (Section 16-3-210(B)), criminal sexual conduct in the first and second degree (Sections 16-3-652 and 16-3-653); criminal sexual conduct with minors, first and second degree (Section 16-3-655); assault with intent to commit criminal sexual conduct, first and second degree (Section 16-3-656); assault and battery with intent to kill (Section 16-3-620); assault and battery of a high and aggravated nature (Section 16-3-600(B)); kidnapping (Section 16-3-910); trafficking in persons (Section 16-3-930); voluntary manslaughter (Section 16-3-50); armed robbery (Section 16-11-330(A)); attempted armed robbery (Section 16-11-330(B)); carjacking (Section 16-3-1075); drug trafficking as defined in Section 44-53-370(e) or trafficking cocaine base as defined in Section 44-53-375(C); manufacturing or trafficking methamphetamine as defined in Section 44-53-375; arson in the first degree (Section 16-11-110(A)); arson in the second degree (Section 16-11-110(B)); burglary in the first degree (Section 16-11-311); burglary in the second degree (Section 16-11-312(B)); engaging a child for a sexual performance (Section 16-3-810); homicide by child abuse (Section 16-3-85(A)(1)); aiding and abetting homicide by child abuse (Section 16-3-85(A)(2)); inflicting great bodily injury upon a child (Section 16-3-95(A)); allowing great bodily injury to be inflicted upon a child (Section 16-3-95(B)); criminal domestic violence of a high and aggravated nature (Section 16-25-65); abuse or neglect of a vulnerable adult resulting in death (Section 43-35-85(F)); abuse or neglect of a vulnerable adult resulting in great bodily injury (Section 43-35-85(E)); taking of a hostage by an inmate (Section 24-13-450); detonating a destructive device upon the capitol grounds resulting in death with malice (Section 10-11-325(B)(1)); spousal sexual battery (Section 16-3-615); producing, directing, or promoting sexual performance by a child (Section 16-3-820); lewd act upon a child under sixteen (Section 16-15-140); sexual exploitation of a minor first degree (Section 16-15-395); sexual exploitation of a minor second degree (Section 16-15-405); promoting prostitution of a minor (Section 16-15-415); participating in prostitution of a minor (Section 16-15-425); aggravated voyeurism (Section 16-17-470(C)); detonating a destructive device resulting in death with malice (Section 16-23-720(A)(1)); detonating a destructive device resulting in death without malice (Section 16-23-720(A)(2)); boating under the influence resulting in death (Section 50-21-113(A)(2)); vessel operator’s failure to render assistance resulting in death (Section 50-21-130(A)(3)); damaging an airport facility or removing equipment resulting in death (Section 55-1-30(3)); failure to stop when signaled by a law enforcement vehicle resulting in death (Section 56-5-750(C)(2)); interference with traffic-control devices, railroad signs, or signals resulting in death (Section 56-5-1030(B)(3)); hit and run resulting in death (Section 56-5-1210(A)(3)); felony driving under the influence or felony driving with an unlawful alcohol concentration resulting in death (Section 56-5-2945(A)(2)); putting destructive or injurious materials on a highway resulting in death (Section 57-7-20(D)); obstruction of a railroad resulting in death (Section 58-17-4090); accessory before the fact to commit any of the above offenses (Section 16-1-40); and attempt to commit any of the above offenses (Section 16-1-80). Only those offenses specifically enumerated in this section are considered violent offenses.”

At first glance, not all of the above offenses may seem “violent” or that they must contain violence to occur, while others clearly fit the stereotypical “profile.”  Nevertheless, it is important to remember that the above offenses will be considered violent offenses by a South Carolina Court for purposes of sentencing, which can also have an impact on one’s placement and other factors if/when incarcerated.  The last line of Section 16-1-60 is also instructive, and clarifying, as it makes it clear that, “Only those offenses specifically enumerated in this section are considered violent offenses.”

South Carolina Code Annotated Section 16-1-70 is essentially a restatement of the last sentence of Section 16-1-60.  It sets forth (as of this writing, February 2012):

“For purposes of definition under South Carolina law a nonviolent crime is all offenses not specifically enumerated in Section 16-1-60.”

I personally like that the legislature has included Section 16-1-70, despite its apparent redundancy.  In short, South Carolina Code Ann. Section 16-1-70 makes it extremely clear to judges, criminal defense attorneys, prosecutors, the Department of Corrections, and defendants, that if the offense one is charged with or may plead guilty to is not listed in Section 16-1-60, it it not considered a violent offense by statute (that one can look up without a fancy subscription based service normally reserved for attorneys).

If you would like to speak with an attorney from our firm concerning your South Carolina criminal charge, whether it is a violent or non-violent offense, please call us at (843) 474-0614 or (800) 996-0683.  We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

Constant Legal Education – My Take on South Carolina’s Continuing Legal Education (CLE) Requirements

Law is a constantly evolving field.  A case may be published by the South Carolina Court of Appeals, South Carolina Supreme Court, or other such court, that can have a huge and immediate impact on how a particular law, theory, or other such matter is interpreted by lower South Carolina Courts. In my opinion, an attorney can also gain enormous knowledge and potential legal and/or case theories that can be applied in current cases by paying attention to theories that other lawyers may have tried/argued.

The South Carolina Supreme Court requires that lawyers continue their education beyond law school and the Bar Examination (a three-day ordeal at the time I took it), by attending and/or participating in a certain amount of annual Continuing Legal Education.

I invest a significant amount of time trying to stay as current as possible in the areas of law that I practice in, and I also occasionally “jump” outside of these areas when I feel that an area of law or seminar may simply interest me or give me more insight into an area that I practice in. My goal is to learn at least one (1) new thing at each CLE (Continuing Legal Education) that I can apply to my practice, with the hope that it will make me a better advocate and counselor for my current and future clients.

CLE requirements are generally completed in a reporting period that the Supreme Court has designated.  In the 2011 reporting period (since March 1, 2011), as of today (January 22, 2012), I have attended and/or participated in the following CLEs:

-Training for Attorneys Subject to Appointments in Abuse and Neglect Cases – 14th Circuit;

-2011 Ethics Update/Trust Accounting and Financial Record Keeping in South Carolina;

-Social Security Disability;

-What Family Court Judges Want You to Know (one of the speakers at this event was Judge Peter Fuge, a Family Court Judge from Beaufort County in the 14th Judicial Circuit);

-Litigating the Uninsured and Underinsured Motorist Claim;

-Plaintiff’s Guide to Dog Bite Litigation;

-Effective Discovery Motions and Tactics 101;

-SSI v. SSDI: Benefits and Eligibility;

-Bankruptcy in Divorce;

-Hospital/Medical Liens in Injury Settlements;

-Substance Abuse and Other Addictions in the Legal Profession.

Added together (the CLEs are not all “worth” the same credit-wise), these credits were more than double what is required by the South Carolina Supreme Court for the current reporting period.  I am also currently enrolled to participate on January 27, 2012, in a live six (6) hour Guardian ad Litem update in Columbia, South Carolina, so that I may continue to act as a Guardian ad Litem for minor children in South Carolina Family Courts for another year without waiver from a Family Court Judge.

While these CLEs are often expensive and time-consuming, I truly believe in the process, and I believe that it is important to my clients to know that I make the investment in a constant education.

This article was written by Dustin Lee, Esquire, a South Carolina licensed attorney.

If you would like to speak with an attorney from our firm concerning your legal matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

What are the Grounds for Divorce in South Carolina? A brief examination of S.C. Code Ann. Section 20-3-10.

Family law has traditionally been governed almost entirely by individual state law (as opposed to federal law).  For purposes of this entry, this means that one state may “allow” a certain ground for divorce, but another, such as South Carolina, may not allow one to file for divorce utilizing that ground, and vice a versa.

South Carolina law sets forth via statute (a law that the South Carolina legislature has created that can actually be found “on the books”) that there are five (5) distinct grounds for seeking divorce in South Carolina.

South Carolina Code Ann. Section 20-3-10 is entitled “Grounds for Divorce” and is written as follows (as of January 7, 2012):

“No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to wit:

  1. Adultery;

  2. Desertion for a period of one year;

  3. Physical cruelty;

  4. Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug; or

  5. On the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year.  A plea of res judicata or of recrimination with respect to any provision of this section shall not be a bar to either party obtaining a divorce on this ground.”

Numbers one (1) through four (4), respectively, are generally considered fault-based grounds for divorce in South Carolina, while number five (5) is generally considered a no-fault ground for divorce in South Carolina.  While the statute setting forth grounds for divorce may seems simple enough upon first glance, there is a plethora (quite a bit) of “Judge made” case-law discussing what each ground means and what is needed to actually prove each and every one of these grounds, including the burden of proof the person alleging the ground has to overcome.  Speaking with a licensed South Carolina lawyer who practices in family law and divorce is often the best way to match specific facts of a situation with possible grounds for divorce.

If you would like to speak with an attorney from our firm concerning your divorce matter or other family law matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

S.C. Code Ann. Section 20-3-30 – A Discussion on How Long One Must Live in South Carolina Before Filing for Divorce

The South Carolina Family Court is a court of limited jurisdiction.  In simple terms, this means that the Family Court can only hear certain types of cases. One of the most common questions an attorney practicing in the area of divorce in South Carolina is asked is, “How long do I have to live in South Carolina before I can file for divorce?”

South Carolina has a statute (this posting has the correct statute as of January 1, 2012) “directly on point” located at S.C. Code Ann. Section 20-3-30 that tells the Courts, attorneys, and parties how long one must live in South Carolina to file for a divorce.

Section 20-3-30 is entitled “Residence Requirement” and sets forth:

“In order to institute an action for divorce from the bonds of matrimony the plaintiff must have resided in this State at least one year prior to the commencement of the action or, if the plaintiff is a nonresident, the defendant must have so resided in this State for this period; provided, that when both parties are residents of the State when the action is commenced, the plaintiff must have resided in this State only three months prior to commencement of the action. The terms ‘residents’ or ‘resided’ as used in this section as it applies to a plaintiff or defendant stationed in this State on active duty military service means a continuous presence in this State for the period required regardless of intent to permanently remain in South Carolina.”

The Plaintiff is generally the one who files the lawsuit seeking relief (the Court’s help), with the Defendant being the one served with the lawsuit.  As an example, if you were to hire this firm to file an action for divorce against your spouse in South Carolina, if no action had already been filed for divorce from this spouse we would draft paperwork setting forth that you are the Plaintiff.  The Defendant listed in the paperwork would be your spouse.

Though the statute may seem a bit long and complicated, at heart it sets forth that:

Before a party may file an action for divorce in South Carolina,

1) At least one of the parties (you or your spouse) must have been a resident of South Carolina for at least one (1) year,

or

2) Both spouses must have resided in South Carolina for at least three (3) months.

The final sentence of S.C. Code Ann. Section 20-3-30 refers to active duty military service members, and directs how the time periods apply to these persons.

It is vitally important to remember that just because the Family Court has jurisdiction over divorce, it may not have jurisdiction over your child custody case and/or other issues (such as certain property).  This is confusing for those who do not practice frequently in this area of law, let alone general members of the public.  Before filing any case, it is important to ensure that the Court will in fact be able to “adjudicate” (hear) all of the issues that you wish for the Family Court to decide. Also, venue, another legal concept, may come into play.  In its simplest terms, venue asks/determines, where should the Court hearing or hearings actually take place, literally (as in Beaufort County Family Court located on Ribaut Road in Beaufort, South Carolina; at the Jasper County Family Court located in Ridgeland, South Carolina on Russell Street; or at some other courthouse)?  Venue is often the subject of complex motions and argument, and therefore is well beyond the scope of this posting.

If you would like to speak with an attorney from our firm concerning your family law matter, please call us at (843) 474-0614 or toll free at (800) 996-0683.  We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

Food for Thought When Purchasing South Carolina Car Insurance Coverage – Underinsured and Underinsured Motorist Coverage

I recently spoke with a high school friend that I had not seen in what seemed to be several months.  This person indicated that she had been in a serious vehicular accident in South Carolina, and had just returned to work recently.  When I asked if she was getting back to full health and recovery, her response was something to the effect of, “Yes, but I am extremely thankful that I paid for extra underinsured motorist coverage.  The air transport ride was about $30,000 alone.”

In South Carolina, as of this writing (January 2012), a South Carolina driver must carry what is commonly referred to as 25/50/25 liability coverage.  Though a slight oversimplification, if one is hit by a driver with 25/50/25 liability coverage, if the other party is negligent and at-fault, this person would have up to $25,000.00 worth of insurance coverage to contribute to your medical bills and other non-property damage, up to a maximum of $50,000.00 for everyone in the vehicle, and up to $25,000.00 to pay for property damage.  Using “guesses” based on the above facts, suppose my friend had incurred $30,000.00 for the air transport in damages and $55,000.00 in medical bills, without counting missed work (lost wages) for two months, pain and suffering, and other such potentially recoverable damages.  My friend would already be beyond the at-fault driver’s coverage by $60,000.00, that she would still be responsible to her medical providers for.  My friend could continue to “go after” the at-fault driver for his or her personal assets, but many people in this economy have little that can be obtained in a lawsuit after any legal exemptions are taken.  Fortunately, there are two (2) types of vehicle insurance that one can purchase in South Carolina to protect oneself from drivers only maintaining minimum coverage.

In South Carolina, insurers offer what is called underinsured motorist coverage.  When you are buying your policy, the insurer will make a meaningful offer to see if you wish to purchase this coverage for your own benefit. Suppose you carry 100/300/100 liability limits on your vehicle, such that you would have coverage should you be at fault for up to $100,000.00 in damages to one person in the hit vehicle, totaling up to $300,000.00 for all occupants, and up to $100,000.00 in property damages.  You could purchase underinsured coverage generally up to your liability amounts/limits.  If you had $100,000.00 in underinsured motorist coverage for one person and were the only one in the vehicle hit by the driver with South Carolina minimum coverage liability only, you would then potentially be able to turn to your own carrier seeking coverage for your damages greater than the at-fault driver’s coverage.

Before running out and buying more underinsured motorist coverage, it is also beneficial to briefly examine and remember uninsured motorist coverage, which must also be offered to South Carolina drivers.  Many drivers believe that since one is generally required to have liability insurance in South Carolina, that they are safe and at least will have some coverage. Uninsured motorist coverage usually applies in South Carolina when the other person has no coverage, so that they are maintaining less than that required by law, or when that driver is from a state other than South Carolina that allows lower minimum liability limits, such that the at-fault driver has insurance, but it is coverage like 15/20/15 or some other figure that is less than that required in South Carolina.  This is also the coverage that generally applies when you are hit or run off the road by a phantom driver that causes damage and then speeds off, never to be seen again.  In these circumstances, the at-fault driver may be unknown, have little to no assets, or otherwise be unable to satisfy a personal judgment beyond his or her insurance coverage.  Purchasing this coverage may be a small price to pay to ensure that you and your family are more financially protected “in case” of disaster. South Carolina’s economy is supported in large part by tourism, and out-of-state driver’s are often not as familiar with local roads as someone who lives in the community – if that driver has minimum liability coverage in his or her state that is less than South Carolina’s 25/50/25, your uninsured motorist coverage is key.

There is also a concept in South Carolina insurance law called “stacking” that is far beyond this posting.  Stacking may also be available to increase your available coverage should you be injured in a vehicular accident in South Carolina.

Spending the extra money now to insure yourself may end up saving you a lot more in the long run, and may greatly increase the amount that you are able to recover should you become involved in an accident. Please choose your coverage wisely.

There can be many additional benefits to purchasing underinsured motorist and uninsured motorist coverage, such as potential coverage while you are riding your bike or walking down the street and are hit by a vehicle, that are not touched upon in this article that may apply to your situation.  This article is not meant to be construed as legal advice, nor is it meant to cover every situation by any means.  You should consult with an attorney to discuss the facts and circumstances of your particular case.

If you would like to speak with an attorney from our firm concerning your South Carolina vehicle accident, we would be honored to speak with you.  We offer a free initial consultation for those injured by an at-fault driver while traveling on South Carolina’s roads, and can be reached at (843) 474-0614 or toll-free at (800) 996-0683.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

S.C. Code Ann. Section 22-3-546 in the Fourteenth Judicial Circuit – First Offense Criminal Domestic Violence

When I began practicing criminal law in the 14th Judicial Circuit, it seemed to be a “given” that any Criminal Domestic Violence First Offense matters that I took on would be prosecuted in Magistrate or Municipal Court, and usually by an arresting officer and/or a hardworking and dedicated Victim’s Advocate officer (as opposed to a law school trained and licensed government attorney).  First offense criminal domestic violence matters were and still are taken seriously by law enforcement and Solicitors (in South Carolina we have Circuit Solicitors and Assistant Solicitors, which are essentially different names for the District Attorney and Assistant District Attorney positions those from other states may be more familiar with); however, a first offense is a misdemeanor, as opposed to a felony offense.  One day I came across a bond form setting forth that an individual was supposed to appear for an Initial Appearance in General Sessions Court (as opposed to a trial date (by default “bench trial”) in Magistrate or Municipal Court) for a Criminal Domestic Violence First Offense misdemeanor offense.  About ten (10) minutes later I had become familiar with S.C. Code Ann. Section 22-3-546, titled “Establishment of program for prosecution of first offense misdemeanor criminal domestic violence offenses.”

S.C. Code Ann. Section 22-3-546 sets forth (as of this posting – December 2011), “A circuit solicitor, in a circuit with five or more counties, may establish a program under his discretion and control to prosecute first offense misdemeanor criminal domestic violence offenses, as defined in Section 16-25-20, in general sessions court.  Whether to establish a program, and which cases may be prosecuted in general sessions court, are within the sole discretion of the solicitor.  A solicitor shall report the results of the program to the Prosecution Coordination Commission.”

When I mention judicial circuits to non-lawyers, I often get blank stares.  South Carolina’s counties are divided into groups called circuits for purposes of many legal proceedings.  The Fourteenth Judicial Circuit is composed of five (5) counties: Beaufort County, Jasper County, Colleton County, Allendale County, and Hampton County.  To my knowledge, the Fourteenth Circuit is the only circuit in South Carolina with five (5) counties, so this law seems to have a mostly local effect.

How does this work in practice?  In my experience thus far with prosecutions conducted pursuant to this statute, an individual charged with a violation of S.C. Code Ann. Section 16-25-20 (the first offense CDV or criminal domestic violence subpart) is given an Initial Appearance date instead of a bench trial date.  A person charged with this offense will have his or her offense brought before a Grand Jury for indictment, just as if this individual were charged with rape, drug distribution, or other such offenses yielding far greater potential incarceration (jail or prison) times.

A person prosecuted pursuant to this program will be physically seated next to individuals potentially charged with extremely serious offenses. Also, should a trial occur, there is definitely going to be a solicitor on the other “side” (at the other “table”).  Though I truly have a lot of respect for the Victim Advocate Officers in our circuit that prosecute these matters, as they have gained a lot of experience in their roles and can be fierce opponents, an Assistant Solicitor is normally equipped with this experience plus a legal background and generally superior knowledge of the rules of evidence and case law.

Though funding for solicitors in the Fourteenth Judicial Circuit to handle the increased caseload due to implementation of Section 22-3-546 is always an issue, it is almost certainly going to be beneficial, if not necessary, for one charged with Criminal Domestic Violence – First Offense in Beaufort County, Jasper County, Colleton County, Hampton County, or Allendale County to have legal counsel.

If you would like to speak with an attorney from our firm concerning your South Carolina Criminal Domestic Violence – First Offense charge, please call us at (843) 474-0614 or (800) 996-0683.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).